Gunn v. Wades

• Court: Georgia Supreme Court
• Writing for the Court: HAWKINS, Justice
• Citation: Gunn v. Wades, 65 Ga. 537 (Ga. 1880)
• Decision Date: 30 September 1880
• Parties: Gunn. v. Wades.

65 Ga. 537

Gunn. v. Wades.

Supreme Court of the State of Georgia

(September Term, 1880.)

Ejectment. Evidence. Homestead. Title. Deeds. Before Judge Crisp. Early Superior Court. December Term, 1879.

Reported in the opinion.

Jno. T. Clarke & Son; A. Hood, Jr., for plaintiff in error.

R. H. Powell; J. C. Rutherford, for defendants.

HAWKINS, Justice.

In January, 1852, James Jones Taylor departed this life tes— tate, leaving a large estate including nearly all the lands in controversy. At the time of his death he was in possession of the lands, and left a widow and three children, James, Robert and Hattie. By his will he bequeathed the lands to his three children; the lands were not soldbut were possessed by the heirs at—law and the *executor and administrator until the year 1871, when by mutual agreement a division took place, dividing it into three parcels, one to each of the children. In 1867, before the division took place, Robert executed a mortgage to Gunn of fifteen hundred and thirty—eight dollars and eighty— seven cents, upon one undivided third of all the lands bequeathed by his father, and some lands willed to him and his brother by his grandfather. After the division in 1871, Robert Taylor applied for and obtained a homestead in the lands set apart to him, and on the sixteenth day of March, 1872, he and his wife, with the approval of the ordinary, sold the lands thus assigned as a homestead to the Wades (the plaintiffs in ejectment) for the sum of, and to secure a debt of, eleven hundred dollars, eight hundred dollars of which was claimed as a debt due from the estate of his father, and three hundred dollars personal to himself. The Wades took possession of the land late in 1872 or in 1873, by putting a tenant by the name of Durrnell in possession. Gunn transferred the mortgage to Robert Currier, of the state of New York, who, on the fourteenth day of October, 1871, filed a bill in equity in the circuit court of the Uuited States against Robert to foreclose said mortgage, and on the twenty—seventh day of April, 1873, obtained a final decree foreclosing said mortgage on the one undivided third of the plantation, consisting of twenty—six hundred and twenty—five acres, more or less, and on the twenty— third of August, 1873, William H. Smythe, United States marshal, by his deputy Uuited States marshal, levied upon the said undivided one—third interest, and on the seventh day of October thereafter, sold the same, and the said Gunn became the purchaser for the sum of two hundred dollars, and thereupon dispossessed the tenant of the Wades as to the lands sued for and which in the division went to Robert and upon which be had taken a homestead, and with his wife and the approval of the ordinary had sold to the Wades. The Wades brought a *suit in ejectment upon the several demises of Robert and wife and themselves, and on the trial thereof the foregoing evidence was submitted, and after the charge of the court, the jury found a verdict for two—thirds of the premises, with mesne profits, amounting to sixteen hundred dollars.

A motion was made by Gunn for a new trial upon various grounds, which motion the court refused, and for said refusal this writ of error is sued out, the grounds of the motion for a new trial were:

1 and 2. The verdict is contrary to law and evidence.

3. Because upon defendant\'s objection to the introduction of the deed from Taylor and wife to the Wades, on the ground that the same was for homestead property which could not be so conveyed away, it was admitted.

4. Upon the same ground as to the deed from James Taylor.

5. Because the court erred in permitting Wade to testify to the evidence given in on a former trial by Durrnell.

6. In refusing to exclude the testimony of Wade as to the nine hundred dollars.

7. Because the court erred in charging the jury "that if James J....